Archive for November, 2017

November 01st, 2017 Comments Off on So Where are We Now? Medical Marijuana and Employment in Michigan.

“I’ve been thinking about this, Mr. Hand. If I’m here and you’re here, doesn’t that make it our time? Certainly, there’s nothing wrong with a little feast on our time.”

Jeff Spicoli – Fast Times at Ridgemont High.

I’m telling you, it took me longer to find a quote somehow related to marijuana I could use in this thing then it did to do the research on the state of the law. Spicoli, the lovable stoner from Fast Times at Ridgemont High, was the best I could do. And he makes a point—if I’m at work and my boss is at work, doesn’t that make it our time and not just my boss’s time? And don’t I have a right to take my medication so that I am not in pain on my time, or our time or whatever we are going to call work time? Why do I ask? Because when it comes to the use of medical marijuana, that question is getting a bit harder to answer than it used to be.

We are going to talk about the law in Michigan. And we do that for two reasons. First, I practice in Michigan. Second, Michigan is on the verge of having a whole new flood of legal Medical Marijuana dispensaries. Now, we are not going to talk about dispensaries and licensing and any of that other stuff; we are going to talk about medical marijuana and employment.

Let’s start with the statue. The Michigan Medical Marihuana Act is what we are talking about here. (Ok, before you say anything about the spelling, I did not spell marijuana that way, the state did, what a bunch of squares, right?) The Act, among other things, provides for the use of medical marijuana under state law and “provide[s] protections for the medical use of marihuana” when recommended by a physician for “debilitating medical conditions.” Section 4 of the Act specifically states: “A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business . . . for the medical use of marihuana. . . .”

Seems pretty clear. You can’t fire someone for using medical marijuana, end of story, right? Not so fast dude! You see, section 7 of the Act states: “Nothing in this act shall be construed to require . . . An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.” Oh, so now I can fire somebody for using medical marijuana, right?

I’m confused, are you? So how is this going to work? Well, the courts are going to decide, and they have.

In Casias v. Wal-Mart Stores, Inc., (which I wrote about here), the court held that an employer could fire an employee who tested positive for marijuana during an employer required drug test even if that employee had a card. Judge Jonker stated: “The fundamental problem with Plaintiff’s case is that the MMMA does not regulate private employment. Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.” Judge Jonker went on to note that the employee’s public policy argument would “confer on medical marijuana patients, rights, to this point conferred only on a select group of people based on immutable characteristics like race, sex and religion.” Judge Jonker also stated: “Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marijuana users.” The case was appealed and the Sixth Circuit agreed: “We agree with the district court and find that the MMMA does not impose restrictions on private employers, such as Wal-Mart.”

I can hear you asking now, “So Steve, why are we having this conversation? Doesn’t that settle it, I can fire my employees if they test positive for marijuana? Well? Doesn’t it?”

Yes, it does, sort of. That is the law in Michigan right now. But there are a couple of things I want you to be aware of. First, other states are going in different directions.

On May 3, 2017 the Superior Court in the State of Rhode Island broke with what most other courts, including Judge Jonker and the 6th Circuit, have done and found that an employer’s enforcement of a neutral drug testing policy to deny employment to an applicant was a violation of the Rhode Island state law. Before I start with this, I just have to point out one really cool thing. The judge started the case with this quote:

“I get high with a little help from my friends”

—The Beatles, 1967

Come on, you have to love a judge that starts his or her opinion with a quote from the Beatles.

Anyway, Plaintiff Christine Callaghan brought an action against Defendants Darlington Fabrics Corporation alleging employment discrimination with respect to hiring for an internship position because she held a medical marijuana card. Ms. Callaghan was a masters student and she wanted an internship. During her interview Ms. Callaghan disclosed that she held a medical marijuana card. The interview concluded shortly thereafter. A couple of days later, the company HR rep and another employee had a conference call with Ms. Callaghan and asked her if she was currently using medical marijuana. She said yes. The HR rep responded by informing Ms. Callaghan that a positive test would “prevent the Company from hiring her.” Ms. Callaghan told the HR rep that she was allergic to many other painkillers and that she would neither use marijuana at work or bring it to the workplace. That did not seem to matter to the company.

Now the Rhode Island Law states: “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” Sound familiar? The Michigan law states “A qualifying patient who has been issued and possesses a registry identification card shall not be subject to . . . penalty in any manner, or denied any right or privilege, including but not limited to . . . disciplinary action by a business . . . for the medical use of marihuana . . . .” Other than Michigan not being able to spell marijuana, sounds pretty close to me.

The Rhode Island Court also pointed out “also relevant to this inquiry. Section 21-28.6-7(b)(2) states that “[n]othing in this chapter shall be construed to require . . . [a]n employer to accommodate the medical use of marijuana in any workplace.” Again, sounds a lot like Michigan. Remember, “Nothing in this act shall be construed to require . . . An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”

But the Rhode Island Court did went the other way. First, they implied a private right of action into the Rhode Island statute that allowed Ms. Callaghan to sue in the first place and then the Court held: “Plaintiff was denied the opportunity to apply for a job with Defendants because she believed she could not pass the pre-employment drug test. Plaintiff did inform Defendants that she was a medical marijuana cardholder and that she would obey state law and not bring marijuana into the workplace. Defendants do not contest that they denied her employment based on the fact that she could not pass the drug screening. Therefore, Defendants have violated the []Act. As a result, the Court grants Plaintiff’s motion for summary judgment and correspondingly denies Defendants’ motion.”

But again, you ask, what has that got to do with Michigan? Well, we have to deal with Braska v Challenge Manufacturing. I have written about this one before too. See it here.

You see, Judge Jonker is a federal judge and the 6th Circuit is a federal court and their decisions when it comes to state law, while persuasive, are not binding on the state courts. So what has Braska got to do with this? Well, Braska involved an employee (actually three employees) who were terminated for testing positive for marijuana. The Court had to decide whether an employee who possesses a registration identification card under the MMMA is disqualified from receiving unemployment benefits after the employee has been terminated for failing to pass a drug test. Spoiler alert, the employees won and got the benefits.

So the Braska Court started with the proposition that the Michigan unemployment statute disqualifies people for benefits for “testing positive on a drug test, if the test was administered in a nondiscriminatory manner.” Isn’t that what happened here? The employees tested positive on a drug test administered in a nondiscriminatory manner or at least that is what the state argued.

So what’s up with that? How come an employer has the right to fire the employee, the statute disqualifies them from getting benefits, but the employee can still get unemployment compensation?

Here is what the Michigan Court of Appeals said. First, the court noted that the MMMA has a broad preemption provision which says:

. . . ‘[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.’

So that disqualifier in the unemployment statute, yeah, it does not matter if the employee has a card and as long as the employee is not otherwise violating the MMMA by, for example, “being under the influence at work” or “using at work.” Now using at work, that is easy, but being under the influence? How do we know that? Most drug testing policies state any positive test is under the influence and we don’t have cut off lines like we do with alcohol. So what do we do? Good question. But in Braska if did not matter because the state never alleged the employees were under the influence, only that they didn’t pass the test.

Second, the court noted that the MMMA says that people with cards who are using marijuana in accordance with the MMMA:

. . . ‘shall not’ . . . be denied any ‘right’ or ‘privilege,’ ‘including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau. . . .

And the court held:

Applying this definition to the present case, we conclude that denial of unemployment benefits under § 29(1)(m) constitutes a ‘penalty’ under the MMMA that was imposed upon claimants for their medical use of marijuana.

So, the summary is that the MMMA trumps the unemployment act and denying unemployment benefits just because of a positive test for someone who properly has a card is a penalty imposed by the state in violation of the MMMA.

But what about the Casias case? Well, the court dealt with that too. First, they basically said Casias is not binding on the Michigan Court of Appeals because this is a question of Michigan law and Casias was a federal case. “The Casias decision is not binding precedent on this Court. (noting that, “[o]n questions of state law, Michigan courts are not bound by foreign authority.” Then the court stated:

Moreover, unlike in Casias, in this case, we are not presented with the issue of whether the MMMA’s immunity clause applies in cases involving action solely by private employers. The issue raised in this case is not whether the employers violated the MMMA because they terminated claimants. The issue is whether, in denying unemployment benefits, the MCAC—a state actor—imposed a penalty upon claimants that ran afoul of the MMMA’s broad immunity clause. When an individual is denied unemployment benefits, the employer’s conduct is not at issue, but rather, the denial involves state action. See Vander Laan v Mulder, 178 Mich App 172, 176; 443 NW2d 491 (1989).

You see, ultimately the court decided that determining who gets or does not get unemployment is up to the state and not the employer and that makes Casias different.

So what does all of this mean? Well, for now, those of us who work in Michigan can still fire an employee or even not hire an employee if they fail a drug test, even if they have a medical marijuana card. I say for now, because it won’t be long before the Michigan courts are asked to answer this question. And it is not altogether clear that they will follow the federal court’s logic. And now that Rhode Island has gone the other way, it won’t be long before other states follow suit. And for now, unless you can prove that the employee either used and work or is under the influence of marijuana (and how do you do that) when you do fire them they are going to get unemployment.

We will keep our eyes open to see what goes on in the courts and the legislature. In the meantime, if you are an employer dealing with these issues and if you have questions give us a call.

About

Steven Palazzolo brings a unique and varied background to the practice of labor and employment law. Prior to attending law school, Steve spent seven years as a shop floor supervisor in both union and non-union food processing plants. Steve also spent 11 years as in-house counsel specializing in labor and employment law for a multi-billion-dollar multinational corporation with extensive manufacturing operations. During this time Steve also supervised a staff of HR professionals. Steve represents employers, emphasizing counseling clients on employee relations issues, policy development, NLRB, ADA, FMLA and international labor relations. Steve has experience in acquisitions, immigration, employee benefits, campaign finance, employment litigation, civil rights and related issues, and has provided counsel to companies in the agricultural, food processing, hospitality, manufacturing and marketing industries in the United States, South and Central America, Europe and Asia. He currently provides counsel to a variety of leading Midwest businesses.

Don’t forget, this blog is for informational purposes only and is not intended to provide legal advice. You should not act based solely on the contents of this blog. The answers to legal questions often depend upon the specific matter at hand. If you have a legal question, contact your lawyer. For more information or a consultation contact spalazzolo@wnj.com.